Legal Implications of Overlapping Land Certificates in Indonesia

• Land Certificate
• Jurisprudence on Overlapped Land Certificates

Land Certificate

Referring to Article 1 number 20 of the Government Regulation Number 27 of 1997 on Land Registration (GR 24/1997) along with the Article 19 paragraph (1) of Law Number 5 of 1960 on Basic Regulations on Agrarian Principles (“Agrarian Law”), certificates are defined as a right-evidencing document, which will be valid as a strong evidence, and it is issued for a land right, right of management (hak pengelolaan), waqf land (tanah wakaf), right of ownership over apartment units, or a security title which has been recorded in the relevant land book (buku tanah).

Only one land certificate can be issued for one parcel of land, unless provided otherwise by law. This is as stipulated in Article 34 of the Minister of Agrarian Affairs and Spatial Planning/Head of the National Land Agency Regulation Number 21 of 2020 on Handling and Settlement of Land Cases (“Handling Land Cases Regulation”).

Read Also: Certificate as Proof of Land Ownership

Despite the apparent provision of its rights, the existence of one land certificate ownership is still often questioned. Among the issues that frequently arise is the validity of the issued certificates, particularly when there is an overlap between two or more certificates over the same parcel of land.

When a dispute over land ownership occurs, such as an overlapping land certificates, it signifies that there is an administrative defect involved. As a result, the aggrieved party may subsequently claim for the cancellation of that particular land certificate. As stipulated in the Article 64 of Government Regulation Number 18 of 2021 on Management Rights, Land Rights, Apartment Unit, and Land Registration (“GR on Land Registration”), that the cancellation of land rights due to administrative defects, among others, may be performed in the events due to overlapping over a land right.

Read Also: Electronic Land Certificate

A commonly disputed issue when such overlaps occur is how to determine which certificate is valid, and who is legally entitled to the land. Disputes of this nature continue to frequently arise to date. Therefore, it is not unusual for a land certificate that have been issued to often become the object of dispute in court.

Jurisprudence on Overlapped Land Certificates

As one of the products of a State Administrative Decision (Keputusan Tata Usaha Negara/KTUN), in which a land certificate constitutes as a written determination issued by the Land Office (Kantor Pertanahan)/National Land Agency (Badan Pertanahan Nasional), containing concrete, individual, final actions, and creates legal consequences. Consequently, disputes concerning overlapping land certificates might be resolved through the State Administrative Court. Supreme Court Circular Letter Number 10 of 2020 (Administrative Court Chamber) has stipulated that certificate cancellation is an administrative action that is the authority of the state administrative court.

Read Also: Is there legal certainty in land ownership in Indonesia?

Regarding the issue of overlapping land ownership disputes, Supreme Court Circular Letter Number 3 of 2018 (Administrative Court Chamber) (Surat Edaran Mahkamah Agung/SEMA 3/2018) has stipulated that in examining the validity of overlapping land title certificates, judges may annul the certificate issued later, provided that:

• The holder of the earlier-issued certificate has physical possession of the land in good faith;
• The history of rights and possession is clear and uninterrupted;
• The procedure for the issuance of the earlier certificate complies with the prevailing laws and regulations.

In another similar case as per the Decision Number 130/G/2016/PTUN-MDN jo. Decision Number 493 K/TUN/2017, a land certificate for right to build in the name of a regional company issued in 1997 with an area of ​​5,006m² was challenged in a state administrative case (TUN) (disputed object). The certificate was issued overlapping with another certificate of right to build in the name of an individual with an area of ​​30m² issued in 1996.

Through the legal consideration in the first level of court, it was stated that:

“The Plaintiff has been able to prove the conformity between the physical data and the juridical data of the land… therefore, it is clearly and evidently proven that the location of the Object of Dispute Land Certificate and the location of the Plaintiff’s land have overlapped.”

“… a Certificate evidencing a person’s land rights, which contains physical data and juridical data registered in the land book, serves as a holder’s reference to their written evidence of rights. Thus, the land rights evidenced by a Certificate indicate the statutory rights of the Right Holder as stated in the Certificate, and therefore in the Issuance of a Certificate of Land Rights, each one Certificate of land rights is issued for one parcel of land. This means that, in principle, there is only one Certificate of Ownership Right (Sertipikat Hak Milik) that may be assigned to one parcel of land, accordingly, and for any reason, it is not permissible for one Certificate of Land Rights, whether in part or in whole, to overlap or cover the parcel of another Certificate of Ownership Right.”

The disputed object certificate was declared as nullified by the state administrative court and upheld by the high court, and re-upheld by the Supreme Court. In its consideration, Judex Juris stated:

“That the certificate of the disputed object overlaps with the Certificate of Right to Build … which was issued earlier. The overlapping of certificates is a form of administrative defect which is the authority of the State Administrative Court to carry out legal control over the Applicant for Cassation II/Defendant. Therefore, at the time of issuance of the certificate of the disputed object, the certificate of Right to Build … is still valid, so to guarantee legal certainty the certificate of the disputed object must be cancelled.”

When considering the judge’s reasoning in the case provided above, it is evident that the judge assessed the validity of a land ownership certificate by taking into account the history of possession, namely regarding which certificate was issued first. This assessment is also in accordance with the provisions in SEMA 3/2018 as previously mentioned.

Furthermore, the judge’s legal considerations have also emphasized the understanding that only one land certificate can be issued to one parcel of land. Consequently, as in the jurisprudence above, when there is more than one certificate over the same parcel of land, to guarantee legal certainty, the land certificate that has caused the overlap, must be cancelled.

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Sources:

• Law Number 5 of 1960 on Basic Regulations on Agrarian Principles.
• Government Regulation Number 24 of 1997 on Land Registration.
• Law Number 30 of 2014 on Government Administration.
• Government Regulation Number 18 of 2021 on Management Rights, Land Rights, Apartment Unit, and Land Registration.
• Minister of Agrarian Affairs and Spatial Planning/Head of the National Land Agency Regulation Number 21 of 2020 on Handling and Settlement of Land Cases.
• Supreme Court Circular Letter Number 10 of 2020.
• Supreme Court Circular Letter Number 3 of 2018.
• Supreme Court Decision Number 493 K/TUN/2017.
• Medan Administrative Court Decision Number 130/G/2016/PTUN-MDN.